concurring in part, dissenting in part.
The majority holds that, by firing claimant, employer cut off her right to receive temporary disability benefits for the period after the discharge even though she was still partially disabled and losing wages as a result of her injury. The majority reaches that result by making an unwarranted extension of Safeway Stores v. Owsley, 91 Or App 475, 756 P2d 48 (1988), and by disregarding ORS 656.212 and Board rules that assure a right to compensation proportionate to the loss of earning power. I dissent from that holding.
The material facts are that, when claimant was fired, she had been released by her doctor to perform only modified, sedentary work, and she was receiving a reduced wage. ORS 656.212 entitled her to temporary partial disability benefits for v. to two years:
“When the disability is or becomes partial only and is temporary in character, the worker shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which the loss of eamingpower at any kind of workbears to the earning power existing at the time of the occurrence of the injury.”
OAR 436-60-0301 repeated the statutory guarantee:
“ (1) The rate of temporary partial disability compensation due a worker shall be determined by:
“(a) Subtracting the post-injury wage earnings available from any kind of work; from
“(b) The wage earnings from the employment at the time of, and giving rise to, the injury; then
“(c) Dividing the difference by the wage earnings in subsection (b) to arrive at the percentage of loss of earning power; then
“(d) Multiplying the current temporary total disability compensation rate by the percentage of loss of earning power.
“(2) If the post-injury wage earnings are equal to or greater than the wage earnings at the time of injury, no temporary disability compensation is due.
*22“(3) An insurer shall cease paying temporary total disability compensation and commence making payment of such temporary partial disability compensation as is due from the date an injured worker accepts and commences any kind of wage earning employment prior to claim determination.
“(4) Temporary partial disability compensation payable pursuant to section (3) shall continue to be paid until:
“(a) The attending physician verifies that the worker cannot continue working and is again temporarily totally disabled:
“(b) The compensation is terminated by order of the Department or by claim closure by the insurer pursuant to ORS 656.268; or
“(c) The compensation has been paid for two years.” (Emphasis supplied.)
Neither the statute nor the rule makes a firing a ground for terminating temporary disability benefits.
The majority relies on Safeway Stores v. Owsley, supra, and Noffsinger v. Yoncalla Timber Products, 88 Or App 118, 744 P2d 295 (1987), rev den 305 Or 102 (1988), but that reliance is misplaced. In Owsley, an injured worker returned to part-time work. She received pay increases under a union contract that caused her part-time weekly wage to exceed her pre-injury full-time wage. She was fired for reasons unrelated to her claim and sought temporary partial disability benefits. We rejected the claim because, under OAR 436-60-030(2), “[i]f the post-injury wage earnings are equal to or greater than the wage earnings at the time of injury, no temporary disability compensation is due.” Owsley says:
“Claimant’s weekly wages were more during the period for which she seeks compensation than at the time of the injury. Therefore, she is not entitled to benefits for temporary partial disability. * * *
“We reject claimant’s contention that employer was required to begin paying temporary partial disability benefits again after she was fired. See Noffsinger v. Yoncalla Timber Products, [supra]; Nix v. SAIF, 80 Or App 656, 723 P2d 366, rev den 302 Or 158 (1986). Even assuming that claimant’s termination did not preclude recovery of benefits for temporary partial disability, she would have been entitled only to the amount that she could have received on account of her *23disability had she not been fired. In this case, that is nothing.” 91 Or App at 479. (Emphasis supplied.)
The italicized statement confirms that the disqualification from benefits was not based on the claimant’s discharge. The court assumed that the discharge was not a disqualifying event. However, the majority erroneously interprets Owsley to hold that the claimant was disqualified because she returned to work and was “thereafter terminated for non-claim reasons.” 118 Or App at 19. The majority’s misreading of Owsley undermines its analysis of this case.
In Noffsinger, the injured worker returned to regular work and was fired for reasons unrelated to the claim:
“The evidence establishes that claimant left work at Yon-calla because he was fired; not because he was disabled. He is not precluded from working for any other employer. We conclude that he has not lost wages because of an inability to work as a result of his compensable condition and that, therefore, he is not entitled to temporary disability benefits. ’ ’ 88 Or App at 121.
Noffsinger is distinguishable, because here claimant was released to perform only modified work at a reduced wage. Unlike the claimant in Noffsinger, she was not capable of returning to regular work. She continued to lose wages due to the injury to the extent that her pre-injury wage exceeded her post-injury reduced wage. Noffsinger does not affect her right to compensation for the continuing proportionate loss of earning power attributable to a compensable injury.
The majority compounds its erroneous reading of Owsley and Noffsinger by misconstruing the phrase “as is due” in OAR 436-60-030(3). Because the majority reads Owsley to hold that a discharge cuts off the injured worker’s right to compensation, it concludes that no compensation is “due” under the rule. However, the phrase “as is due” in subsection (3) refers to the benefit calculation formula in subsection (1) and the benefit limitation in subsection (2). Even if the phrase were meant to incorporate all conditions that limit a claimant’s right to receive benefits, subsection (4) states those conditions; a firing is not among them. The majority does not explain away that inconsistency.
*24Finally, the majority’s assertion that “no wages, in whole or in part, were lost because of claimant’s compensable injury,” 118 Or App at 20, ignores the fact that claimant earned a reduced wage at her modified job. She continued to suffer a wage loss due to her injury to the extent that her pay before injury exceeded her reduced wage. She is entitled to compensation for that proportionate loss of earning power.
If employer believed that claimant was no longer disabled, its proper course was to seek closure of the claim under OAR 436-60-030(4)(b) and ORS 656.268, not to unilaterally terminate benefits. The unfortunate result of the majority’s decision is that it relieves the employer of the responsibility to follow legislatively preferred claim closure procedures and permits the employer to unilaterally cut off benefits while the worker is partially disabled and suffering a wage loss. I cannot concur with that result.
I concur in the affirmance of the Board’s denial of penalties and attorney fees2 and its finding that claimant was terminated for reasons unrelated to her injury. However, I would reverse the Board’s determination that claimant is not entitled to temporary disability benefits after she was terminated and that employer is entitled to an offset for overpayment.
OAR 436-60-030 has since been amended in a way that does not affect this case.
Employer relies on Owsley in contending that, because claimant was fired, its denial was reasonable and did not warrant an order of penalties and attorney fees. The argument is difficult to accept, because Owsley’s holding turned on the amount of the claimant’s post-injury income, not on the fact that she was discharged. However, the Board’s rulingis justified, because no case had determined whether the duty to pay compensation under OAR 436-60-030(4) to a worker performing modified work at a reduced wage was affected by a firing.